King v. State

Appeal
from the Circuit Court for Sumner County No. 2-2015 Dee David
Gay, Judge

The
petitioner, Jeffrey King, pleaded guilty to multiple drug and
money laundering crimes, and the trial court sentenced him to
forty years of incarceration to be served at 100%. The
petitioner attempted to reserve certified questions of law
pursuant to Tennessee Rule of Criminal Procedure 37(b)(2)
about whether wiretaps used in the investigation of the crime
were lawful. This Court determined that the petitioner was
not entitled to relief on the basis of the certified
questions and affirmed the judgments on appeal. State v.
King, 437 S.W.3d 856, 889 (Tenn. Crim. App. 2013). In
2015, the petitioner filed a petition for post-conviction
relief, claiming that he received the ineffective assistance
of counsel and, after a hearing, the post-conviction court
denied relief. After review, we affirm the post-conviction
court's judgment.

J.
Ross Dyer, J., delivered the opinion of the court, in which
Robert W. Wedemeyer and D. Kelly Thomas, Jr., JJ., joined.

OPINION

J.
ROSS DYER, JUDGE

I.
Facts and Procedural History

The
facts underlying this case encompass numerous charges against
the petitioner and his co-defendants for possession and sale
of marijuana, money laundering, and possession of firearms in
Davidson, Sumner, and Rutherford counties.[1] The petitioner
was represented by different attorneys in each county and
pleaded guilty to varying drug and money laundering offenses
in each county.

A.
Trial

On
direct appeal, this Court summarized the factual and
procedural background of the case for each of the three
counties. We include that which is relevant to this appeal:

On October 7, 2008, Phillip L. Taylor, state investigator for
the 20th Judicial District Drug Task Force of Nashville,
Davidson County, Tennessee, filed in the Criminal Court for
Davidson County, Tennessee, an Application for Interception
of Wire and Electronic Communications for the interception of
communications through telephone line [(XXX)-XXX]-7591
"used by Bruce Dady" ("the First Dady
Application" and "the First Dady Number"). The
First Dady Application is 59 pages long and consists of 271
numbered paragraphs containing the sworn averments of Officer
Taylor. The identified "concern" of the First Dady
Application was "the delivery, sale, or possession with
intent to sell or deliver, 700 pounds or more of any
substance containing marijuana, and conspiracy to commit the
same" ("the Target Crimes"). The First Dady
Application identified the following individuals as
participants in the Target Crimes: Vernon E. Lockhart, Bruce
A. Dady, the [petitioner and his co-defendants], . . .
(collectively, "the Target Subjects"). . . . .

Also on October 7, 2008, Officer Taylor filed in the Criminal
Court for Davidson County, Tennessee, an Application for
Interception of Wire and Electronic Communications for the
interception of communications through telephone line
[(XXX)-XXX]-5541 "subscribed to by Cassie T. Roark"
but "believed to be used primarily by [the
petitioner]" ("the King Application"). The
King Application is 60 pages long, consists of 275 numbered
paragraphs, and is substantially similar to the First Dady
Application.

On October 7, 2008, the Criminal Court for Davidson County,
the Hon. Mark Fishburn ("the Issuing [c]ourt"),
granted the First Dady Application, the King Application. . .
and issued as to each Application an Order Authorizing the
Interception of Wire and Electronic Communications, a
ten-page document. Each Order contains the following
findings:

4. There is probable cause to believe that [the Target
Subjects] have committed, and will continue to commit, the
offenses of delivery, sale, or possession with intent to sell
or deliver, 700 pounds or more of any substance containing
marijuana, and conspiracy to commit same.

5. There is probable cause to believe that the telephone
assigned phone number [(XXX)-XXX]-5541, a telephone service
provided by Verizon Wireless, . . . subscribed to by Cassie
T. Roark at 1636 Stokley Lane, Old Hickory, Tennessee,
believed to be used by [the petitioner], Target Subject, in
connection with the commission of the above described offense
[sic].

6.There is probable cause to believe that the communications
to be intercepted will concern the telephone numbers
associated with the Target Subjects, and the dates, times,
and places for commission of the aforementioned offense when
the Target Subjects communicate with their coconspirators,
associates and other participants in the conspiracy, thereby
identifying the co-conspirators and others as yet unknown. In
addition, these communications are expected to constitute
admissible evidence of the above described offense.

7.It has been established adequately that normal
investigative procedures have been tried and have failed,
reasonably appear to be unlikely to succeed if tried, or are
too dangerous to employ.

Applications
for additional wiretaps and for extensions of the wiretaps
previously authorized ensued over the period from October 10,
2008 through late March 2009. The Issuing court granted all
of the State's applications, resulting in the electronic
surveillance of a total of twenty-three telephones. The
involved phone numbers were monitored for several months for
evidence related to the Target Crimes.

In
2009, the [petitioner and his co-defendants] were indicted in
several Middle Tennessee counties on multiple charges
including drug and money-laundering offenses. In the Sumner
County and Davidson County cases, the [petitioner and his
co-defendants] each filed a motion to suppress the evidence
gleaned from the wiretaps. [The petitioner] also filed a
motion to suppress the evidence gleaned from the wiretaps in
the Rutherford County case. Each of the trial courts held an
evidentiary hearing and subsequently issued orders denying
the [petitioner's and his co-defendants'] motions.

Sumner County: One count of conspiracy to possess over
seventy pounds of marijuana, a Class B felony, with a
sentence of twenty years in the TDOC; three counts of the
delivery of over ten pounds of marijuana, a Class D felony,
with concurrent sentences of six years' incarceration for
each offense; one count of the possession of over seventy
pounds of marijuana, a Class B felony, with a consecutive
sentence of twenty years in the TDOC; one count of possessing
a firearm during the commission of a felony, a Class E
felony, with a concurrent sentence of two years'
incarceration; and seven counts of money-laundering, a Class
B felony, each with a concurrent sentence of twenty
years' incarceration.

In conjunction with [his] plea, the [petitioner] reserved the
following certified questions of law:

In the trial court, the [petitioner] moved to suppress the
fruits of electronic surveillance on numerous grounds: (1)
that the initial wiretap Applications lacked probable cause
to justify interception in violation of T.C.A. §§
40-6-304(c) and 40-6-305, specifically including the
Applications' failure to demonstrate the statutorily
required nexus between the phone to be intercepted and the
alleged illegal activity sought to be intercepted; (2) that
the initial Applications failed to demonstrate a
constitutionally sufficient requisite necessity for the use
of electronic surveillance pursuant to T.C.A. §
40-6-304(a)(3) and 18 U.S.C. § 2518(1)(c); (3) that all
subsequent wiretaps were the fruits of the prior illegal
wiretap interceptions and therefore, were fruits of the
poisonous tree; (4) that the notarized but unsigned affidavit
requesting a second extension of the wiretap for telephone
number (615) 584-6075 was statutorily deficient to support
interception; (5) that, in addition to being a fruit of the
prior illegal interceptions, the subsequent interception of
telephone (615) 653-2294 lacked probable cause to justify
interception in violation of T.C.A. §§ 40-6-304(c)
and 40-6-305 because they [sic] failed to make a sufficient
link between the phone and suspected criminal activity or the
targets of the investigation; (6) that, in addition to being
a fruit of the prior illegal interceptions, the subsequent
interception of telephone (615) 818-2839 lacked probable
cause to justify interception in violation of T.C.A.
§§ 40-6-304(c) and 40-6-305 because they [sic]
failed to make a sufficient link between the phone and
suspected criminal activity or the targets of the
...

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